Sunday, January 23, 2005

Miss Kate Hoey
MP for Vauxhall
House Of Commons
London
SW1A 0AA
Thursday 23 October 2003

Dear Miss Kate Hoey,

Re: EU’s Competitiveness Council of Ministers Meeting 10/11/2003

I am very concerned that this meeting will set aside the work done by the European Parliament on 24/09/2003 to define and exclude the patentability of pure software. I hope you will share my worries with the minister for e-commerce, Steven Timms MP.

As a Senior Software Architect for a AIM-listed software company, and co-author of three software books, I have become seriously worried about the implications of software patents, mainly because of the way they undermine the concept of software ownership and provide ’perverse incentives’ that penalise implementation to the benefit of having ideas. Let me ask the following questions:

First: What, as a matter of public policy, is the optimum number of patent lawyers per software development department for a healthy and thriving economy?

We are currently digesting the implications of Microsoft having lost a Web browser patent case to Eolas. Microsoft now have a page[1] instructing developers how to code their web pages in such a way that they do not contravene the Eolas patent. Bill Gates of Microsoft said[2] ’If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today’. The US now appears to be moving towards that ’standstill’. As a software developer, I want to use my technical competence to meet my customers’ requirements. ’Working round’ existing or anticipated patent claims does not help us or our customers to do better business sooner. The EU Parliament’s amendments would go a long way to help ensure that we don’t follow the US in turning a fast-moving and innovative industry into a slow, demoralising legal quagmire.

Second: What is the cost of establishing that the developers of any complex software system actually own the right to sell or even use it?

The EU Parliament amendments, by giving a strong definition of ’technical effect’ and other steps, will have the effect of preventing most ’basically-software’ patents. But if such patents are allowed then they can apply to many levels of software design, from the network layer to reports and the user interface. The scope of each patent claim is blurred by the double hazard of legal and technical language, which can normally be resolved only by one or more defendents being taken to court. I do not believe that it is possible, at any price, to prove absolute ownership over any reasonably complex piece of software, but I would like to know how much it would cost to provide reasonable confidence. The thought that my employers might not - due to patent infringement - own the code that I and my colleagues have written for them, and which we sell to our customers, frankly terrifies me.

Third: Will there be any relief from ’submarine patents’ where patent holders wait - intentionally or otherwise - for ideas which they claim to have patented to be used (in formal or informal software standards, major public or private software systems or the products of companies about to have their IPO) before suing the owners and users and, if winning, having the opportunity to demand as economic rent anything up to the cost of re-implentation, regardless of how mission- or even safety-critical the system?

This is an absolutely live question - the de-facto graphics file standard of the Web, the GIF, was first subject to patent claims by Sperry[3] an astonishing seven years after it had been created and adopted by the internet community. The W3C, responsible for many web standards, has found it difficult to get even the participants in standards development to agree that they will not subsequently make patent claims over the standards that they have helped create. And an American company, PanIP, claims to have patented the use of software to do e-commerce, and is suing small companies[4] that do business over the web, and do not generally have the resources to fight law cases.

Fourth: How will the government and other software users protect themselves against the consequences of accidental patent infringement without discriminating against small software vendors?

The sensible reaction to threatened patent suits will be to ask vendors and contrators to indemnify the customer against patent or copyright infringement. In the current SCO copyright case against Linux, both Sun and HP have offered their Linux customers indemnity[5][6] against the SCO law suit. Microsoft were able to offer their customers indemnity while being sued by Timeline over a patent concerning SQL Server. You will notice that these are very large companies whose offers of indemnity carry credibility. Smaller companies who have to compete more on innovation than on marketing will be more exposed to patent cases, and less able to reduce the harm by indemnifying their potential customers.

Finally, as someone who has been involved in implementing and writing about new technologies it is my experience that ideas are cheap and implementation - design, specification, coding, testing and documenting - is expensive. Implementation is what needs to be encouraged for a healthy, competitive economy, and the most direct means to encourage implementation is a strong copyright regime that has not been dangerously undermined by software patents.

The only winners from software patents in general will be large companies with patent portfolios to exchange with each other who gain a legal barrier to prevent competitors from interfacing to their systems; and small predatory companies which do not actually produce any product and therefore do not need to exchange patents with anyone. The losers will be small innovative vendors[7] and any body, private or public, that depends on having the right to use software that it has purchased or developed.

I hope you can now see why this issue is so important to me, and why I urgently hope to raise these concerns at the most appropriate level to influence the upcoming meeting, after which I believe it will impossible to amend the council of minister’s proposal without an absolute majority of the the 623 elected members of the EU parliament.

2 comments:

A little unfair - Kate Hoey sent me a nice letter in which she confessed that this wasn't one of her usual areas of expertise, and forwarded my missive to the minister concerned. She got my vote, anyway!